[Congressional Record Volume 140, Number 104 (Tuesday, August 2, 1994)]
[Senate]
[Page S]
From the Congressional Record Online through the Government Printing Office [www.gpo.gov]


[Congressional Record: August 2, 1994]
From the Congressional Record Online via GPO Access [wais.access.gpo.gov]

 
                FALSE CONVICTIONS AND THE DEATH PENALTY

 Mr. SIMON. The criminal justice system is only as reliable as 
the men and women who make up its ranks. And just as human beings are 
fallible, so are the courts of this Nation. The problem is that, when 
police officers, prosecutors, and judges make mistakes or act 
improperly, society commits a crime against justice: An innocent human 
being may be sentenced to prison or even to death.
  A recent article in USA Today suggests that such miscarriages of 
justice are more common than we might like to believe. Take the case of 
John Spencer, convicted of a double murder in 1987 largely based on a 
fingerprint said to be found at the crime scene. Spencer's conviction 
was reversed when police officers conceded that the fingerprint 
introduced at trial was not actually found at the crime scene, but 
taken from a cabinet frame Spencer leaned against when he was at the 
police station being booked.
  And then there is the case of Gary Nelson, who lived on death row for 
11 years for the rape and murder of a 6-year-old girl, largely on the 
testimony from a crime lab director who said a hair found on the girl's 
body and Nelson's arm hair have the same origin. Appeals lawyers later 
discovered that the crime lab had never examined the hair found at the 
murder. The FBI lab that did had determined that ``it could have come 
from any black person, including, but not limited to, other suspects in 
this case or the victim.''
  Admittedly, these are egregious cases of police and prosecutorial 
misconduct. But even without this kind of willful violation of the law, 
human beings will act carelessly or recklessly. And those mistakes are 
all the more likely because so many defendants are the neglected and 
alienated in our society.
  Ultimately, the fallibility of the criminal justice system is one of 
strongest reasons I know to oppose the death penalty. People make 
mistakes. But when the cost of a mistake is the life of an innocent 
person, we must reexamine the need to impose this awful and irrevocable 
punishment. The point is simply this: So long as human beings are 
fallible, the death penalty has no place in the courts of a civilized 
society.
  I ask that the full text of the USA Today article be published in 
full after my remarks.
  The article follows:

                  [From the USA Today, July 19, 1994]

                False Science Often Sways Juries, Judges

                  (By Laura Frank and John Hanchette)

       No one knows how many innocent people have been sent to 
     prison with false evidence.
       But there have been at least 85 instances in the past 20 
     years in which prosecutors--knowingly or unknowingly--relied 
     on fabricated, mishandled or tampered evidence to convict the 
     innocent or free the guilty, a Gannett News Service analysis 
     of legal and media databases finds.
       Often, the wrongful prosecutions hid behind science.
       ``In the U.S., we take science as gospel,'' says Ray 
     Taylor, a San Antonio lawyer and forensic pathology expert. 
     ``The public perception is that (faking science) is rare. The 
     truth is, it happens all the time.''
       If science is gospel, then the scientists are its 
     preachers. And when the scientists work for the police, 
     critics say, the gospel can take a certain slant.
       ``It just boggles the mind,'' says Glen Woodall, a 
     Huntington, W. Va., man who spent five years behind bars for 
     a crime he did not commit.
       Woodall was convicted of two rapes in 1987, after a state 
     police forensic expert named Fred Zain said hair and semen 
     from the crime scene matched his.
       But Zain faked the evidence--in this case and many others, 
     West Virginia's state Supreme Court later found.


   forensic tests often cannot show what experts testified they found

       The ``science'' in the wrongful convictions studied by GNS 
     ranges from the absurd--an evidence-sniffing dog that could 
     solve decade-old crimes--to the advanced, such as DNA tests 
     touted as fail-safe genetic fingerprints.
       Most of it involves fingerprints, blood typing, semen 
     analysis and hair samples--the same kind of evidence that 
     each side will try to use to its advantage in the upcoming 
     O.J. Simpson murder trial.
       And in each case in the analysis, the jury or the judge 
     believed the science, sometimes despite reams of evidence to 
     the contrary.
       ``Faking or lying about evidence is not out of the ordinary 
     at all,'' says James Starrs, a George Washington University 
     law professor who specializes in forensic science. ``There 
     are so many things of this kind, I'm horrified.''
       Although there are dozens of examples, probably no case 
     study is more shocking than that of Zain.
       Taylor calls it the ``largest case of evidence-fixing in 
     U.S. history.''
       Zain's ``fraud on the judicial system may be the worst 
     we've ever seen documented,'' says John Hingson, president of 
     the National Association of Criminal Defense Lawyers.
       More than 1,000 convictions now are in question because 
     Zain who worked in both West Virginia and Texas, is accused 
     by courts and colleagues of faking evidence for 18 years.
       Yet a year after such accusations first were made, Zain has 
     not been charged. Eight months after the West Virginia 
     Supreme Court ordered charges be sought against Zain, none 
     has been filed.
       Zain has denied any wrongdoing; neither he nor his lawyers 
     will comment.
       Zain was hired as a chemist at the West Virginia police 
     crime lab in 1979, though he failed chemistry in college.
       While testifying as an expert in dozens of rape and murder 
     cases, he reported results of tests that he had not 
     performed, Zain's co-workers told the court.
       They had complained to Zain's superiors as early as 1985. 
     Nothing was done. In frustration, co-workers taped a 
     magician's wand to one of Zain's lab machines.
       ``Magic was the only way he could have been coming up with 
     the answers he got,'' says Gayle Midkiff, Zain's former lab 
     assistant and a West Virginia state trooper.
       In 1989, Zain took his ``pro-prosecution'' reputation and a 
     letter of recommendation from the governor and headed to 
     Texas.
       There he was named head of serology at the Bexar County 
     Medical Examiner's office in San Antonio.
       Zain kept that job until last year, when allegations of 
     wrongdoing finally reached Texas. The San Antonio medical 
     examiner asked Dallas forensic specialist I.C. Stone to 
     review some of Zain's cases.
       Choosing randomly, Stone found something wrong in each of 
     the 14 cases he studied.
       Zain reported things the tests weren't capable of showing. 
     He testified about blood on evidence when lab notes showed no 
     blood had been found. He reported doing tests his lab wasn't 
     capable of.
       ``I've never seen anything like it,'' Stone says.
       But there are many other cases that hinge upon false and 
     hidden evidence:
       John Spencer was sentenced in 1987 to 50 years to life for 
     a double murder in a rural area of New York state.
       Spencer was convicted largely on a fingerprint lifted by 
     New York State Police investigator Lt. Craig Harvey, who 
     testified he found it on a Formica counter at the murder 
     scene.
       Harvey, one of three troopers found guilty of criminal 
     misconduct in a burgeoning New York State Police fingerprint 
     scandal, later conceded no fingerprints were found at the 
     scene. He said he obtained Spencer's print from a cabinet 
     frame Spencer leaned against when he was booked.
       Spencer's conviction was vacated, with a new trial slated 
     for September.
       Ed Honaker was convicted in February 1985 of abducting and 
     raping a woman at gunpoint in the Blue Ridge Mountains of 
     Virginia.
       She identified him from a photo lineup. A police forensic 
     expert found sperm in the seminal fluid found at the scene. 
     But Honaker had undergone a vasectomy years earlier and did 
     not produce sperm.
       The forensic expert, Elmer Gist of the Virginia Bureau of 
     Forensic Science, testified a hair found at the scene was 
     ``consistent'' with Honaker's. No forensic test can 
     positively identify hair as coming from any particular 
     individual.
       Centurion Ministries, a nonprofit organization that has 
     helped free at least six men wrongly imprisoned, arranged for 
     a DNA test of the evidence. Honaker's genetic traits did not 
     match those of the rapist.
       Now, even the prosecutor says Honaker should be freed. So 
     far, Virginia Governor George Allen has not acted.
       Gary Nelson lived on Georgia's death row for 11 years after 
     his 1980 conviction for raping and killing a 6-year-old girl, 
     largely on testimony from a crime lab director who said a 
     hair found on the girl's body and Nelson's arm hair ``have 
     the same origin.''
       Appeals lawyers discovered the Savannah crime lab had never 
     examined the hair found on the body. It had been sent to the 
     FBI crime lab in Washington, which had determined it ``could 
     have come from any black person, including, but not limited 
     to, other suspects in this case or the victim.''
       Nelson was freed in 1991.
       Juan Ramos was sentenced to Florida's electric chair a 
     decade ago for stabbing to death a Cocoa housewife.
       No forensic evidence tied Ramos, who said he was innocent, 
     to the victim. Pennsylvania dog handler John Preston claimed 
     his super-nosed German shepherd could pick up criminals' 
     scents after any time interval and had identified Ramos' 
     scent on both the murder weapon and the victim's blouse.
       A judge made Preston submit his dog to tests on another 
     scent five days old. The dog didn't have a clue.
       The unmasking of Preston's dogs caused an uproar. Cases 
     were overturned in Virginia, Ohio, Florida, Arizona and other 
     states. The Florida Supreme Court threw out the dog testimony 
     and ordered a new trial. Ramos was quickly acquitted.
       These cases are nothing less than human rights violations, 
     says William Lee Miller, constitutional author and political 
     thought professor at the University of Virginia.
       ``Americans fought from the beginning for a society that 
     respects fundamental human rights,'' Miller says. ``What this 
     is bringing out is the moral failure of the United States.''
       And most the abuses go unpunished, he says, because the 
     victims often are minorities and the poor--people like West 
     Virginia's Glen Woodall, a former grave digger imprisoned by 
     false evidence.
       Woodall is now free, and a lot richer because of a $1 
     million settlement given to him by the state. But he is 
     angry.
       ``To me, lying about evidence is worst than the crime that 
     might have been committed,'' says Woodall. ``What kind of 
     justice is that?''

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